Ali v. U.S. Dep't

676 F.Supp.3d 460

Badry Badry ALI, Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

No. 5:23-CV-32-D

United States District Court, E.D. North Carolina, Western Division

Signed June 8, 2023

Aaron Daniel Lindquist, Coastal Legal Counsel, Wilmington, NC, for Plaintiff.

Benjamin J. Higgins, United States Attorney's Office, Raleigh, NC, for Defendants.

ORDER

JAMES C. DEVER III, United States District Judge

On January 20, 2023, Badry Badry Ali ("Ali" or "plaintiff") filed a complaint against the United States Department of State, United States Embassy in Cairo, Egypt, United States Secretary of State Antony Blinken, and Ambassador of the United States at the United States Embassy in Cairo, Egypt, Daniel Rubinston (collectively, "defendants") asking this court to issue a writ of mandamus compelling defendants to adjudicate his son's visa petition [D.E. 1]. On March 31, 2023, defendants moved to dismiss the complaint [D.E. 10] and filed a memorandum in support [D.E. 11]. See Fed. R. Civ. P. 12(b)(1), (6). On April 13, 2023, Ali responded in opposition [D.E. 12]. On April 27, 2023, defendants replied [D.E. 13]. As explained below, the court grants defendants' motion to dismiss and dismisses without prejudice Ali's complaint.

I.

A United States citizen or lawful permanent resident seeking to sponsor their foreign adult child for an immigrant visa must file a Form I-130 with U.S. Citizenship and Immigration Services ("USCIS"), which is under the purview of the Department of Homeland Security ("DHS"). See 8 C.F.R. § 204.1(a)(1). DHS has an internal policy known as the Controlled Application Review and Resolution Program ("CARRP"). See Compl. [D.E. 1] ¶ 24. Ali alleges that "CARRP prohibits USCIS field officers from approving an application with a potential national security concern, instead directing officers to deny the application or delay adjudication—often indefinitely—in violation of the INA." Id. at ¶ 27. Ali alleges that CARRP broadly defines national security concerns "based on deeply-flawed and expansive government watchlists, and other vague and overbroad criteria that bear little, if any, relation to the security-related statutory ineligibility criteria." Id. at ¶ 28.

If USCIS approves the Form I-130, USCIS sends the approved Form I-130 to the National Visa Center ("NVC"), which is under the purview of the Department of State ("State Department"), not the DHS. See 8 C.F.R. § 204.2(a)(3). After the NVC receives the Form I-130, the foreign citizen child must submit a DS-260-Immigrant Visa Electronic Application, the required supporting documents, and necessary fees to the NVC. See 22 C.F.R. §§ 42.65, 42.67(a). Once the NVC receives these documents, the NVC determines the case to be "documentarily complete," and the foreign citizen child can be scheduled for an appointment for an interview to make a visa petition before a consular officer. See 22 C.F.R. § 42.67(a)(1), (a)(3). The NVC schedules appointments in the chronological order of the documentarily complete cases. See 9 FAM 504.4-6a. The U.S. embassy or consulate determines the availability of an appointment. See id.

Ali is a U.S. citizen. See Compl. ¶ 1. Ali's son, Abdelrahman Badry Soliman Badry, is a citizen and resident of Egypt. See id. at ¶ 2. On February 25, 2021, Ali filed a Form I-130 for his son. See id. at ¶ 13. On October 25, 2021, USCIS approved Ali's Form I-130. See id. ¶ at 15. The Form I-130 was sent to NVC, and NVC assigned a case number to the Form I-130. See id. at ¶ 16. Since then, the agency has not scheduled an interview or made a decision. See id.

Because All's son is a citizen and resident of Egypt, the scheduled NVC interview would take place at the U.S. Embassy in Cairo, Egypt (the "Cairo Embassy"). See [D.E. 11] 4. The United States alleges that due to the onset of the COVID-19 global pandemic, the State Department suspended visa services at all U.S. embassies and consulates around the world in March 2020. See id. Due to the backlog caused by COVID-19 and staffing shortages at the Cairo Embassy, there remains a significant backlog in scheduling interviews for immigrant visa petitions. See id. Therefore, for the past approximately year and a half, Ali and his son have been waiting for an interview date or decision. See Compl. ¶¶ 16-17; [D.E. 12] 4.

II.

A motion to dismiss under Rule 12(b)(1) tests subject-matter jurisdiction, which is the court's "statutory or constitutional power to adjudicate the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (emphasis omitted). A federal court "must determine that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of that [claim]." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 479-80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the "court may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quotation omitted); see Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). A plaintiff must establish that this court has subject-matter jurisdiction. See, e.g., Steel Co., 523 U.S. at 103-04, 118 S.Ct. 1003; Evans, 166 F.3d at 647; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). However, "when a defendant asserts that the complaint fails to allege sufficient facts to support subject matter jurisdiction, the trial court must apply a standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in the complaint and any additional materials]." Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009).

Rule 12(b)(6) tests the complaint's legal and factual sufficiency. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-63, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd, 566 U.S. 30, 132 S.Ct. 1327, 182 L.Ed.2d 296 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation omitted); see Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Giarratano, 521 F.3d at 302. In considering the motion, the court must construe the facts and reasonable inferences "in the light most favorable to the [nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 352 (4th Cir. 2014) (quotation omitted); see Clatterbuck v. City of Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013), abrogated on other grounds by Reed v. Town of Gilbert, 576 U.S. 155, 135 S.Ct. 2218, 192 L.Ed.2d 236 (2015). A court need not accept as true a complaint's legal conclusions, "unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted); see Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937. Rather, a plaintiff's factual allegations must "nudge[ ] [its] claims," Twombly, 550 U.S. at 570, 127 S.Ct. 1955, beyond the realm of "mere possibility" into "plausibility." Iqbal, 556 U.S. at 678-79, 129 S.Ct. 1937.

When evaluating a motion to dismiss, a court considers the pleadings and any materials "attached or incorporated into the complaint." E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011); see Fed. R. Civ. P. 10(c); Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 166 (4th Cir. 2016); Thompson v. Greene, 427 F.3d 263, 268 (4th Cir. 2005). A court may also consider a document submitted by a moving party if it is "integral to the complaint and there is no dispute about the document's authenticity." Goines, 822 F.3d at 166. Additionally, a court may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment. See, e.g., Fed. R. Evid. 201; Tellabs, Inc. v. Makor Issues & Rts., Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).

Ali alleges that defendants unlawfully withheld and unreasonably delayed the adjudication of his son's visa case in violation of 5 U.S.C. § 706(1). See Compl. ¶¶ 19-33; [D.E. 12] 7-17. Ali's complaint consists of a CARRP-related claim, a request for mandamus, and an APA claim. See Compl. ¶¶ 19-33; [D.E. 12] 7-17. Ali also alleges that defendants violated his rights under the Due Process Clause of the Fifth Amendment by failing to provide a reasonable and just adjudication framework. See Compl. ¶¶ 34-37; [D.E. 12] 17-18.

A.

As for Ali's CARRP-related claim, Ali alleges that defendants intentionally delayed adjudicating his son's visa case because of CARRP. See Compl. ¶¶ 19-33; [D.E. 12] 7-17. Defendants respond that Ali lacks an injury sufficient to establish standing because CARRP only applies to DHS, and DHS, through USCIS, moved Ali's son's visa application to the next step and is no longer involved in Ali's son's visa process. See [D.E. 11] 9-11; [D.E. 13] 1-3. Defendants also argue that, even assuming the court has subject-matter jurisdiction over the CARRP-related claim, Ali fails to state a plausible claim for relief. See [D.E. 11] 12; [D.E. 13] 3.

A plaintiff establishes standing by showing: (1) injury-in-fact, that the plaintiff has " 'suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical' "; (2) traceability, that " 'a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court' "; and (3) redressability, that it is " 'likely, as opposed...